On Assault Weapons, Logic Collides With Politics

      Just four weeks after the deadly shooting at Sandy Hook Elementary School in Newtown, Conn., a 16-year-old student sneaked into his school in central California on Thursday [January 10], armed with a shotgun, and fired at classmates he blamed for bullying him. In contrast to the 26 students killed in Newtown, however, the casualty count at Taft Union High School was minimal: one student wounded, in critical but stable condition, and a teacher grazed by a shotgun pellet.
      Just as in Newtown, the still unidentified juvenile in California might have killed or wounded many more. Authorities in the Kern County sheriff’s office say the student had a list of other targeted schoolmates. But the student’s 12-gauge shotgun lacked the firepower of the AR-15 assault rifle with a 30-round magazine that Adam Lanza used on Dec. 14 to mow down more than two dozen six- and seven-year-olds in a matter of minutes. And a teacher talked the student into giving up his weapon — in contrast to Lanza, who never had to stop to reload.
      The logic of the two episodes seems inescapable: an effective ban on assault weapons would likely limit the number of deaths and injuries in mass shootings. So it was no surprise that among the first policymaking responses to Newtown was a vow by Sen. Dianne Feinstein, a California Democrat, to introduce legislation in the new Congress to revive the assault weapons ban that the Republican-majority Congress allowed to lapse in 2004.
      Politically, however, an assault weapons ban remains at best a long shot. The brook-no-compromise leadership of the National Rifle Association (NRA) will not hear of it. The NRA’s lock on the Republican Party will doom the proposal in the GOP-controlled House of Representatives unless lawmakers feel heat from the White House. And even after Newtown, a Gallup Poll indicates that a narrow majority of Americans — 51 percent to 43 percent — oppose reinstating the ban.
      Despite the obstacles, Vice President Joe Biden said on Sunday that the interdepartmental task force that Obama appointed him to lead after Newtown is likely to recommend a ban on assault weapons and large capacity magazines. Earlier, some insiders had reported speculation that the task force might drop the assault weapons issue in hopes of marshaling political capital for steps more likely to find bipartisan support.
      In arguing for the assault weapons ban, the administration and outside groups will have to work around booby-traps laid by the gun lobby. Opponents will argue in particular that the ban enacted by a Democratic-controlled Congress in 1994 had no discernible effect on crime or homicide rates during its decade on the books. The argument posits a criterion that the law, limited in scope and purpose, could not be expected to meet.
      To begin, the law banned only the manufacture or sale of new weapons that met the very specific definitions of an assault weapon. Unlike the broad federal ban on machine guns, the law allowed semi-automatic firearms without the requisite combination of lethal features. And the law had no effect on the estimated 1.5 million assault weapons then in circulation. For that reason alone, any effect the law might have had would necessarily have been gradual.
      In any event, the ban — included as one part of the omnibus Violent Crime Control and Law Enforcement Act — was never realistically expected to have a major impact on crime or homicide rates. Assault weapons are not the firearm of choice for day-to-day killings, stick-ups, and break-ins. In a study for the National Institute of Justice as the ban was up for renewal, University of Pennsylvania criminologists concluded that its effects on gun violence were “likely to be small at best and perhaps too small for measurement.”
      Assault weapons are commonly used, however, in assaults on police officers and in mass shooting such as those in Newtown and in the Aurora, Colorado, movie theater. For that reason, the Penn researchers concluded that reducing criminal use of assault weapons and large capacity magazines “could have non-trivial effects” on gun shot victimizations. Attacks with semiautomatics, the researchers wrote, “result in more shots fired, more persons hit, and more wounds inflicted per victim than do attacks with other firearms.”
      More research might have teased out more conclusions about the effects of the ban. But the gun lobby has managed to cut off most federal funding of research into gun violence, its causes and effects.
      Where research fails, common sense nevertheless might prevail, as indicated by the common position taken on assault weapons over the weekend by ideologically opposite columnists. Joe Nocera, a generally liberal columnist for the New York Times, described the experience of firing an assault weapon as “frightening.” From the opposite side, conservative syndicated columnist Kathleen Parker endorsed an assault weapons ban despite a lifetime of growing up with guns and defending gun rights. Forcing a shooter to reload during a rampage, Parker concluded, could limit the toll.
      If polar-opposite columnists can find common ground on the issue, one might think that Republicans and Democrats in Congress could as well. But common ground on gun issues has proved elusive for the past 40 years — and may be elusive yet again this year.

No Transparency on 'Death by Drone' Program

      The Obama administration has given repeated assurances that it is exceedingly careful in its expanded use of unmanned aircraft — drones — for the targeted killing of al Qaeda terrorists. Unnamed officials provided for-publication backgrounders with details of the process for identifying targets and giving the go-ahead for the kill. Defense Secretary Leon Panetta went on the record in a CBS News interview to say that only the president can give the final authorization for the kill.
      The administration has also gone to some lengths to assure Americans that Justice Department and Pentagon lawyers have given the most careful consideration to the delicate issue posed by targeting a U.S. citizen allied with al Qaeda for death by drone. In the most elaborate iteration, Attorney General Eric Holder in March 2012 outlined a three-part test that must be met before a U.S. citizen is targeted; the third part itself includes a check-list of four specified conditions to meet to comply with the international law of war.
      With all this ostensibly careful consideration, one would think that the administration must have a legal document that formally lays out the reasons why the law permits the government to dispense with any sort of judicial procedure or review before a targeted killing. But apparently not. At least that is the seeming conclusion from the government’s position in resisting, successfully so far, lawsuits by the American Civil Liberties Union (ACLU) and the New York Times seeking details about the drone program, including the legal rationale relied on by the administration in carrying it out.
      Between them, the ACLU and the Times have been invoking the federal Freedom of Information Act (FOIA) for nearly three years to force the administration to open up about the drone program. To its credit, the administration has gradually become more forthcoming about the program in speeches, interviews, and not-for-attribution backgrounders. In court, however, government lawyers have pulled out all stops to avoid being forced to turn over the actual documents about the program, including any formal legal opinions to justify it.
      In a ruling last week [Jan. 2], a federal judge in New York City reluctantly sided with the government in rejecting the FOIA requests. In a 70-page opinion, U.S. District Court Judge Colleen McMahon acknowledged that “more fulsome disclosure” of information about the program “would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated.” But she said that Freedom of Information Act “precedents” left her no choice but to find the requested materials covered by the act’s broadly written exemptions covering national security (exemption 1), classified documents (exemption 3) and internal legal deliberations (exemption 5).
      Admittedly, the ACLU and the Times had an uphill fight in trying to get around the first two of those exemptions covering national security and classified documents. Formal legal opinions, however, are generally not exempt under the FOIA. And the administration eventually acknowledged the existence of a joint memorandum by the Department of Defense and the Justice Department’s Office of Legal Counsel (OLC) addressing the legal issue.
      In seeking to keep the memo under wraps, the government argued first that it included information about intelligence sources and methods exempted under the FOIA. As McMahon noted, however, the document could have been “redacted” — that is, edited – to black out the properly classified information and the rest of the document released. But the government further argued that the memo was not a formal opinion, but was the kind of “confidential, pre-decisional, and deliberative” legal advice covered by exemption 5.
      Confronted with that position, McMahon said she could not order the memo disclosed. There was “no evidence,” McMahon wrote, that the government had specifically relied on the arguments made in the memo or that it had been “expressly adopted” or “incorporated by reference.”
      McMahon was apt in analogizing the issue to the previous dispute over the Bush administration’s use of torture or torture-like tactics in interrogating al Qaeda members. Justice Department lawyers famously green-lighted the use of so-called “enhanced interrogation techniques,” including waterboarding, in legal memos that came to light only after the fact — indeed, only after a new head of OLC had repudiated them. Exposed to the light of day, the legal opinions were denounced by a range of legal experts and observers as poorly reasoned.
      The Obama administration’s legal justifications for the drone program might or might not survive close scrutiny, but for now they are locked behind a Freedom of Information Act exemption. The ACLU and the Times both say they will appeal McMahon’s ruling. The ACLU is asking not only for the legal memoranda, but also for the information the government used to target Anwar al-Awlaki, the U.S.-born Muslim cleric killed by a drone-fired missile in Yemen in September 2011. McMahon described the ACLU’s laundry-basket FOIA request as “facially overbroad.” But she clearly wanted to grant the Times’s narrower request except for the narrow reading that courts have given to the FOIA in the past.
      In taking office, Obama pledged his administration to greater transparency, but freedom-of-information advocates such as the Sunlight Foundation say the administration’s record has been disappointing. The administration is evidently glad to take credit for using drones to wipe out al Qaeda leaders, but unwilling to allow close scrutiny of the legal reasoning that supposedly justifies the way the program is being carried out.

Right to Carry Guns Headed to Supreme Court

      Gun rights advocates won their most important court victory in the past two-and-a-half years last week [Dec. 11] when the federal appeals court in Chicago struck down Illinois’ virtually absolute ban on carrying concealed weapons in public. But news of the ruling was quickly eclipsed by two other gun-related stories: a shooting episode in an Oregon shopping mall on the same day that left three persons dead and the horrific massacre in Newtown, Conn., that claimed 28 lives [Dec. 14]. Both shooters killed themselves at the scene.
      The shootings produced predictable anger among gun control supporters, low-lying silence from gun rights advocates, and — after two-day wait — a strong call from President Obama for unspecified action to prevent more such tragedies. “We can’t tolerate this anymore,” Obama said in remarks at an interfaith service in Newtown on Sunday night.
      The debates over gun laws included immediate calls to revive the lapsed ban on assault weapons of the type that Adam Lanza used to gun down 20 first-graders at Sandy Hook Elementary School and six school staff members before using a pistol to kill himself. (Lanza killed his mother before going to the school.) Many commentators saw a likely “tipping point” in the long stalemated debate over regulating guns.
      In the meantime, however, the appeals court ruling on the Illinois concealed weapon ban portends a new issue for the Supreme Court to decide. And if the Roberts Court follows its two previous gun rights rulings, its decision could further restrict lawmakers’ ability to curtail the role of guns in day-to-day life in America.
      The ruling by the Seventh U.S. Circuit Court of Appeals builds on the two Supreme Court decisions of the past four years that held the Second Amendment to protect an individual right to possession of firearms for the purpose of self-defense. The court struck down the District of Columbia’s ban on possession of handguns in the first of the rulings, Heller v. District of Columbia (2008), and extended the right to states and localities in a ruling striking down a similar ban in Chicago, McDonald v. City of Chicago (2010).
      Conservatives generally praised and liberals generally criticized the rulings, both by 5-4 votes divided along the justices’ conservative-liberal fault lines. But one improbable critic was Judge Richard Posner, the idiosyncratically conservative jurist and prolific legal commentator. Writing in The New Republic only six weeks after the ruling, Posner called Heller “questionable in both method and result.” The decision, he said, showed that the court, in constitutional cases, “exercises a freewheeling discretion strongly flavored with ideology.”
      Court watchers can rightfully claim surprise, therefore, in seeing Posner as the author of the farthest extension to date of Heller and McDonald. Writing for the majority in the new case, Moore v. Madigan, Posner said the Supreme Court’s decisions recognizing a right to possess handguns inside the home for self-defense also necessarily imply some right to possess some kinds of weapons in public place for the same purpose: self-defense.
      Posner relied in part on textual analysis. The Second Amendment’s right to “keep and bear arms,” he reasoned, “implies a right to carry a loaded gun outside the home.” Looking to English history, he interpreted the 17th century statutes that barred going armed “with dangerous or unusual weapons” as implying permission for others. And in contemporary America, Posner said, the need for self-defense recognized in Heller and McDonald may be more acute on the streets than in the home. “A Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than his apartment on the 35th floor of the Park Tower,” he wrote.
      From logic, Posner — joined by Judge Joel Flaum, like Posner a Reagan appointee and former chief judge on the Seventh Circuit — moved to empiricism. Summarizing the studies, Posner said the net effect that carriage of guns in public has on crime rates in general and murder rates in particular is “uncertain.” He credited in particular studies that show a low rate of arrests or misuse of weapons by gun permit holders. On that basis, Posner said that the empirical literature “fails to establish a pragmatic defense of the Illinois law.” In any event, he said the Supreme Court “made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts.”
      In a dissent, Judge Ann Williams, a Clinton appointee, argued that the issue is “closer than the majority makes it out to be.” Williams found no recognized right to carry arms in public at the time the Second Amendment was written or earlier in England. And she saw a contradiction between recognizing a right of public carriage and upholding laws of the sort that the Supreme Court cited in Heller as permissible, such as bans on guns in government buildings or other “sensitive” places. A “patchwork” of laws governing where loaded guns are or are not permitted would negate meaningful self-defense, Williams reasoned. Her conclusion: “[T]he constitutional right to carry ready-to-use firearms in public for self-defense may well not exist.”
      The Seventh Circuit’s ruling clashed with an earlier decision by the Second Circuit that upheld New York’s restrictive law requiring applicants for gun permits to show a “special need” for self-protection (Kachalsky v. County of Westchester, Nov. 27). The issue is headed, inexorably, toward the Supreme Court, the court where Posner saw ideology more than law as driving its pronouncements on the issue.

Ban on Gay Conversion Therapy in Uncharted Territory

      Teenager Gabriel Arana came home from high school one day in fall 1998 to be confronted by his mother, who had discovered an e-mail with his confession to having a crush on a male classmate. “Are you gay?” his mother asked. “I blurted out that I was,” Arana recalled in a first-person account written in April for The American Prospect.
      Arana’s problem-solving mother gathered research on the Internet on “gay conversion therapy.” Along with Gabe’s father, she prevailed on their reluctant son to go meet the leading practitioner in the field: Joseph Nicolosi, a clinical psychologist in Los Angeles and then the president of the National Association for Research and Therapy of Homosexuality (NARTH).
      Arana’s story ends well. He gave therapy a try, but he was not “cured” — only left in despair and doubt that eventually led him to contemplate suicide in college. His chastened father came around. “I’d rather have a gay son than a dead son,” he said when he learned of Gabe’s suicidal thoughts. Today, Gabe is still gay, living in Washington with his husband and working as a writer and web editor at the Prospect.
      Gabe’s story exemplifies the results of gay conversion therapy: few if any documented “cures,” but many patients saddled with anguish and doubt about a part of their identity that the American Psychiatric Association delisted as a mental disorder four decades ago. Instead of helping patients, gay conversion therapy may hurt them, according to the considered judgment of the American Psychological Association and other recognized mental health associations.
      Based on those views and anecdotal evidence from the victims of unsuccessful gay conversion therapies, the California legislature earlier this fall approved a precedent-setting bill to bar licensed mental health professionals from practicing what the law calls “sexual orientation conversion efforts” (SOCE). “These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery,” Gov. Edmund G. Brown Jr. said in signing the bill on Sept. 29.
      The Democratic-controlled legislature approved the bill by substantial margins, but most Republicans opposed it. So did some mental health organizations, concerned that the bill as originally written could have affected mainstream professionals in their treatment of patients with sexuality issues. Those groups shifted to support or neutrality after the bill was rewritten more narrowly.
      In opposing the measure, NARTH and member therapists argued that their practices were being misrepresented and that the alleged harms were unproven. They noted that NARTH now officially discourages so-called “aversion therapies” — including electric shock, induced vomiting, and the like. In his account, Arana did not indicate that Nicolosi used such techniques in treating him.
      The fate of the law, due to go into effect on Jan. 1, is clouded because of separate legal challenges filed in federal court in Sacramento. One suit was brought by individual gay conversion therapists (Welch v. Brown); the other by NARTH, individual therapists, and unnamed parents on behalf of sons now being treated by Nicolosi (Pickup v. Brown). In successive rulings last week [Dec. 3, Dec. 4], one federal judge ruled against the law, while the other upheld it. The issue is headed inevitably to the federal appeals court for California, the Ninth Circuit, and perhaps eventually to the Supreme Court.
      The government has undoubted authority to regulate medical professionals, but the law ventures into uncharted territory because it touches on views — disapproval of homosexuality — that are constitutionally protected under the First Amendment’s provisions on freedom of speech and freedom of religion. '”There's a good deal of uncertainty about how to apply the First Amendment to professional speech to clients and even more uncertainty in the case of minors,'' Eugene Volokh, a First Amendment expert at UCLA Law School, remarked to The New York Times.
      In the first of the court rulings, Judge William Shubb saw the free-speech issue as requiring him to use the highest constitutional standard — strict scrutiny — in reviewing the law. “[I]t is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality,” he wrote. Shubb said he doubted that the law would withstand strict scrutiny because the alleged harms of the therapies were unproven and the law left unlicensed counselors free to practice the therapies anyway.
      In her ruling the next day, Judge Kimberly Mueller viewed the law as regulating conduct, not speech, and therefore subject to the lax “rational basis” standard of constitutional review. Mueller acknowledged that the psychologists’ group’s task force had waffled on the harm issue. “We cannot conclude how likely it is that harm will occur from SOCE,” the task force wrote. But it went on to say there was evidence that efforts to change sexual orientation “may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.” Mueller deferred to the legislature on the issue, saying it “could have had a legitimate reason” to enact the law.
      Whatever the eventual legal ruling, Arana is convinced that Nicolosi and others simply do not understand homosexuality, which Nicolosi to this day attributes to overprotective mothers and underattentive fathers. In an interview for the story, Nicolosi tells Arana that he thinks the therapies at least did no harm. “Like nuclear fallout, the damage came later,” Arana writes, “when I realized my sexual orientation would not change.”

Gerrymandering, Unchecked by Court, Aids GOP

      House Speaker John Boehner wasted no time on election night in celebrating the Republicans’ projected victory in maintaining control of the House of Representatives. With polls not yet closed in the West, Boehner went before network cameras to lay out his view of the results. By renewing the GOP’s majority, Boehner said, “the American people have also made clear that there is no mandate for raising tax rates.”
      Three weeks later, a CNN poll released on Nov. 26 indicated that Boehner misread the election results. More than two-thirds of those surveyed said the current “fiscal cliff ” deadlock should be resolved by a mix of spending cuts and tax increases; fewer than one-third favor the GOP’s preferred solution of spending cuts only.
      More fundamentally, however, Boehner is wrong to claim any Republican mandate at all in the GOP’s diminished 234-201 majority in the House. Actually, more Americans voted for Democratic candidates in the House than for Republicans: about 56 million for Democrats and 55 million for Republicans, according to the latest compilation by the Associated Press. This marks the first time since 1996 that one party won more House seats while winning fewer votes, according to data from the House Clerk’s office reported by Bloomberg’s veteran political analyst Greg Giroux.
      How did Republicans fare so much better in House seats than in vote totals? Giroux and others point to one major factor: partisan gerrymandering in the House districts drawn up by GOP-controlled legislatures after the 2010 census. In state after state, GOP lawmakers did all they could to strengthen Republicans in their districts and either weaken Democrats in theirs or pack Democratic voters into districts where their votes would be to some extent wasted. Democrats followed the same script in states where they controlled the process, such as Illinois and Maryland, but the Republicans had a numerical edge in state capitals as the decennial redistricting process got under way.
      Results from this year’s elections cited by progressive commentators — Ian Millhiser, a senior analyst with the Center for American Progress, and syndicated columnist Harold Meyerson — highlight discrepancies between the partisan divide at the state level and results in House contests. President Obama carried Pennsylvania by more than 5 points, but Republicans won 13 out of 18 House seats. He won Ohio by 2 percentage points, but Republicans captured 12 out of 16 House seats. In Virginia, Obama won by 3 percentage points, but Republicans won eight of 11 House seats. Obama carried Wisconsin by 7 percentage points, but Republicans won five of the eight House seats. Obama eked out a narrow victory in Florida, while Republicans won 17 of 27 House seats.
      By Meyerson’s calculation, Republicans gained a 55-25 edge in the House delegations from those five states that Obama carried. “If the control of these House seats reflected the Democrats' statewide margins in presidential and Senate contests,” Meyerson writes, “the Democrats would likely be at parity or in the majority in the new House.”
      Creative map-drawing is not the only explanation for the discrepancy. In many states, Democratic voters are concentrated in urban districts that produce lopsided majorities for Democratic candidates. In Pennsylvania, for example, Democrats carried the five districts they won by more than 750,000 votes, but Republicans amassed a slight edge in the statewide totals for House races.
      Still, the importance of partisan gerrymandering is undeniable. And the practice persists, as Millhiser notes, because of the Supreme Court’s timidity in confronting it.
      The court in 1986 opened the door, but only slightly, to constitutional challenges to overly partisan congressional or legislative districting. The fractured ruling in Davis v. Bandemer said a districting plan could be thrown out if the evidence showed “continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.”
      Two decades later, the court confronted in a Pennsylvania case a seemingly egregious example of partisan gerrymandering. After the 2000 census, the GOP-controlled legislature did its best to help the party as it redrew House districts to account for the loss of two seats. Democratic incumbents were paired against each other in two districts, while another Democratic incumbent was moved into a Republican-leaning district. As a result, the GOP moved from an 11-10 majority in the state’s House delegation to a lopsided 12-7 advantage.
      Despite the evident partisanship, the court in Veith v. Jubelirer (2004) left the districting scheme in place. Four conservative, Republican-appointed justices led by Antonin Scalia called for eliminating any oversight of gerrymandering at all. Moderate-conservative Anthony M. Kennedy would not go that far; instead, he left the door open to future challenges if “workable standards” emerged. Two years later, however, Kennedy wrote for a 5-4 majority in rejecting Democrats’ challenge to an overtly partisan House redistricting scheme drawn by the GOP-controlled legislature in Texas (League of United Latin American Citizens v. Perry, 2006).
      With little reason to fear Supreme Court scrutiny, the Pennsylvania legislature, still under GOP control, again drew House districts after the 2010 census to advantage Republicans. The party’s 13-5 majority in the state’s congressional delegation defies the close partisan divide among voters. But this and similar distortions in other states will persist as long as the Supreme Court turns a blind eye to the dishonored practice of political gerrymandering.

On Gay Marriage, Will High Court See a "Tipping Point"?

As Maine goes, so goes the nation.

— Traditional political adage

      The press release hit e-mail boxes shortly before midnight on election night (Nov. 6): “Mainers Approve Marriage for Same-Sex Couples; First Time Freedom to Marry Passed in Ballot Measure.” For gay rights advocates, the vote in Maine broke a string of 31 consecutive defeats in statewide voting on marriage equality. By the next morning, however, they could claim a four-state winning streak, as voters in Maryland and Washington state also approved measures to recognize same-sex marriages and Minnesotans rejected a measure to ban same-sex marriage in the state.
      Voting in all four states was close, but not razor-thin. The gay marriage proposals won with 53 percent in Maine, 52 percent in Maryland and Washington. In Minnesota, the constitutional amendment to define marriage as the union of one man and one woman failed with a little under 48 percent of the vote.
      The margins were far smaller than the 2-to-1 majorities that gay marriage opponents typically gained in their string of victories dating from 1998 in Alaska and Hawaii. Still, a win is a win, however close, whether in baseball or politics. Gay rights organizations were trumpeting the results even as gays and lesbians around the country were hailing the victories as a watershed event. “The word tipping point comes to mind,” Ian McCann, a gay journalist in Dallas, posted on his Facebook page.
      LGBT Americans had other grounds for celebrating. Tammy Baldwin, a Democrat, will become the first openly LGBT member of the Senate in January after defeating her Republican opponent, popular former governor Tommy Thompson, by a 5 percent-plus margin. Baldwin’s House seat was won by another openly gay Democrat, Mark Pocan. Mark Takano, a Japanese American, became the first openly gay person of color to be elected to Congress by winning a House seat in California. In all, the Gay and Lesbian Victory Fund counts six openly gay members of the U.S. House and seven candidates who won election as the first or the only out members of their state legislatures. “This was a breathtaking leap forward,” said Chuck Wolfe, president and CEO of the fund.
      Gays and lesbians were also celebrating President Obama’s re-election. Obama had disappointed the LGBT community in his first two years in office by moving slowly on repealing the military’s “don’t ask, don’t tell” policy and failing to get behind a federal bill to ban anti-gay discrimination. But he solidified support after signing the “don’t ask, don’t tell” repealer in December 2010 and then again when he endorsed marriage equality for same-sex couples in May 2012.
      More important than any individual race or ballot measure, gay marriage appears to have achieved majority support nationwide, according to several recent polls, and with that support appears to be receding as a political wedge issue. Republican strategists used anti-gay marriage amendments in 2004 to help drive the GOP base to the poll. The tactic may or may not have helped George W. Bush carry Ohio and with it win re-election, but regardless there was little evidence in the 2012 balloting that support for gay marriage carried a political cost. At the head of the ticket, Republican Mitt Romney said he opposed gay marriage but did not highlight the issue.
      The victories in Maryland and Washington came after state legislatures voted to recognize same-sex marriages; in both states, Democratic governors pushed the measures through Democratic-controlled legislatures, but won only thanks to a handful of votes from Republican lawmakers backing the party lines. Opponents forced referendums on the measures, professing confidence that voters would reject the laws; they were wrong.
      Once the newly approved laws take effect, gay marriage will be legal in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — plus the District of Columbia. Of those 10 jurisdictions, elected lawmakers voted their approval in eight — all but Iowa and Massachusetts. Opponents can no longer blame activist judges alone for “redefining” marriage; the change is now coming through the political process.
      The argument over the litigation strategy versus the political strategy has simmered within the LGBT community. Those who favored going to courts argued for boldly claiming constitutional rights now, not later; those who stressed the political route warned of a backlash that could harm, not help, the cause. From the perspective of 2012, it appears that both sides can claim vindication. Without litigation, the issue would never have risen to the top of the national agenda. Without victories in legislatures and at the ballot box, favorable court rulings will be hard to win and — as in California, with Proposition 8 — at risk of reversal.
      The wall of anti-gay marriage constitutional amendments, adopted in most red and a handful of blue states, now poses a daunting obstacle for marriage equality advocates. Reversing them through the political process is out of the question today, and perhaps for the foreseeable future. For that reason, the focus of attention must inevitably shift to the Supreme Court, which could decide to hear the constitutional challenge to Proposition 8 later this term. As Mr. Dooley wisely observed, the Supreme Court reads the election returns. It remains to be seen whether the justices will look to Maine as a bellwether on this issue.

Drone War Needs Close Look From Next President

      Barack Obama campaigned in 2008 on a promise to turn the country’s back on the Bush administration’s war on terrorism policies. Guantánamo was to be closed, “enhanced interrogation techniques” ended, and a friendlier face presented to the Muslim world. Four years later, Guantánamo remains open, military trials continue to be used, and remote-controlled U.S. drones are targeting suspected al Qaeda operatives in three Islamic countries — Pakistan, Somalia, and Yemen — with the inevitable risk of collateral damage to innocent civilians.
      With the present campaign dominated by a single domestic issue — the U.S. economy — human rights concerns have gone all but unaddressed. But U.S. human rights groups have presented Obama and his Republican challenger Mitt Romney with ambitious agendas for the next president. In separate papers, Amnesty International USA and a coalition of groups led by Freedom House renew the call to close Guantánamo, urge more accountability on the use of drones, and ask for stronger U.S. measures to support democratization and protect human rights abroad.
      Both papers stress the importance of U.S. leadership on international human rights issues. That theme should resonate with internationalist liberals as well as conservative adherents to the doctrine of American “exceptionalism.” And Freedom House takes time to pat the Obama administration on the back for taking a lead role on such issues as LGBT rights, Internet freedom, and general women’s rights. Perhaps those policies will be maintained whichever candidate wins.
      Conversely, many of the proposals in both papers are unlikely to make much if any progress whatever the outcome of the presidential election. The next Congress seems all but certain to look much the current one: a Republican-controlled House, Democratic-controlled Senate, and no sudden outpouring of bipartisanship. On that basis, it seems unlikely that Congress will relent in its stubborn opposition to closing Guantánamo or trying the suspected “enemy combatants” in civilian instead of military courts. And Amnesty International is all but certain to be disappointed in its wish list of human rights treaties for the Senate to ratify. Nor is the United States likely to join the International Criminal Court in Obama’s second term or in a Romney administration.
      By contrast, the president himself is the decision-maker on the common demand in both papers for a re-evaluation and recalibration of the Obama administration’s expanded use of drones to target al Qaeda. Amnesty asks the two candidates: “Will you end unlawful killings, bring the use of drones in line with international human rights and humanitarian law, and make public the Department of Justice memo that reportedly details the legal rationale for ‘targeted killings?’”
      In like vein, the Freedom House-led coalition calls on the next president to “reevaluate and publicly clarify the criteria and the basis for targeting . . . decisions, the process by which such decisions are made, and the mechanisms in place to ensure compliance with international law and the protection of civilians.” Amnesty International USA signed on to the coalition’s letter, which also drew support from such leading human rights groups as the American Civil Liberties Union, Human Rights First, and Human Rights Watch.
      Obama’s embrace of the drone war discomfits his supporters on the political left even as it strengthens his national security credentials with centrist Democrats and independents. For his part, Romney endorsed the use of drones in the final presidential debate, but with a significant caveat: “We can’t kill our way out of this.”
      The human rights groups’ call for greater transparency echoes the view of news organizations that have attempted to report on the drone war. “Accurate information is hard to come by,” Margaret Sullivan, the New York Times’s newly appointed public editor or ombudswoman, wrote in a column in mid-October. The Washington Post endorses the use of drones, but called in a Nov. 1 editorial for “greater disclosure, more political accountability, more checks and balances and more collaboration with allies.”
      In her column, Sullivan cited a report by the Bureau of Investigative Journalism in Britain that what Sullivan calls this “push-button war” claimed between 282 and 535 civilian lives, including 60 children, during Obama’s first three years in office. The administration insists the number is far lower. Sullivan goes on to quote Sarah Knuckey, a human rights investigator now at New York University Law School, as having found widespread fear of drone strikes among Pakistanis when she visited Pakistan recently.
      The casualty count of al Qaeda militants is likewise a subject of sharp dispute. The government appears to count any adult males killed in drone strikes as militants unless there is exonerating evidence. A new report by human rights investigators for Stanford and New York University law schools urges journalists to make that notation in any body-count stories. The report also contends that the drone strikes have aided recruitment for anti-American groups and, on that basis, questions how valuable they are in making the United States safer.
      With Obama and Romney in seeming agreement, the conflicting accounts and assessments went unexplored in the presidential campaign. But the next commander in chief would be well served to heed the calls from many quarters to take a clear-eyed, hard-headed look at the drone war before deciding how much further, if at all, to extend it.